My post’s heading, Woolf v Genn: the decline of civil justice, is taken from an article in the Times of 23 June 2009 which I missed. I do not altogether blame myself for not seeing it — the people who redesigned the Times website last year, turning it from a place of structured order into a kind of literary lucky dip, have recently turned their attentions to the print edition, and only random chance now brings me to the legal pages. Doubtless some of the alterations were for the better, but the designers could not resist throwing in some extra change-for-the-sake-of-change to ensure that we noticed that things were different now.

Much the same is said of the Civil Procedure Rules of 1999. An overhaul was overdue and some of the resulting amendments were undoubtedly for the better. The designers, however, felt obliged to make some showy changes, apparently for their own sake. If there was any logic in changing “discovery” to “disclosure” or in doing away with terms like “plaintiff”, “writ” or “Anton Piller” they were lost on me and on many others. I have already referred to an excellent article by HHJ Charles Harris QC published in The Times on 16 April (Sad and unsatisfactory — but not destroyed) who said this:

Lord Woolf wanted less complexity in the CPR. They should, he said, be “simple and easily comprehensible to layman and lawyer alike”. So he changed the language a little; perhaps not always for the better (claimant), or for the shorter (statements of case) or for the more comprehensible (part 20 defendant).

Judge Harris also drew attention to the fact that the last White Book before the CPR ran to 3,933 pages whereas it is modern equivalent has 5,827 pages. I occasionally sit round a table with two case managing judges, Senior Master Whitaker and HHJ Stephen Oliver-Jones QC, in my capacity as a member of Master Whitaker’s e-disclosure drafting group. One cannot but be impressed by the speed with which they navigate those 5,827 pages looking up references. I would be the more impressed, however, if we could strip out 25% of the content, preferably the 25% which imposes the hoops and burdens of pre-action procedures which the CPR interposed between the plaintiff (sorry, claimant) and the issue of his writ (sorry, claim form) and his search for simple, cost-effective justice. No doubt these judges manage to find the legal section of the Times as well.

Professor Dame Hazel Genn QC is one of the CPR’s strongest critics. I wrote in February (see Mediation — not about just settlement but just about settlement) of her attack last year in her Hamlyn Lecture on the decline of civil justice, the degradation of court facilities and the diversion of civil cases to private dispute resolution. She returned to her theme in June, this time in a seminar at UCL at which Lord Woolf, the architect of the CPR and the principal target of Dame Hazel’s attack, was also present.

You can read the article for yourself, but I would like to pull a couple of points out of it. My own starting point, as is probably clear by now, is that it is the duty of government to provide an efficient and cost — effective forum in which commercial parties and individuals can resolve their disputes. Our government, whilst bleating about access to justice (and actually giving that label to a junior minister) has raised court fees, broken its promises to invest in civil court systems and facilities, and all but removed legal aid. Litigants must face these deliberate barriers before grappling with any deficiencies in the system itself.

Dame Hazel is quoted in The Times article as saying:

Interest in ADR worldwide stemmed from a failure of civil courts to provide access to fair procedures — and so was a cheaper option for governments than trying to fix or invest in “dysfunctional” court systems. It was, in effect, “an admission of defeat”.

This is a point which stands on its own, independently of (although obviously part of) the funding argument. The Times report is necessarily a compressed abstract of what was said but, as reported, Lord Woolf was able to duck the point about “fair procedures” and “dysfunctional court system” by focusing on the implication that his brief was to cut costs.

I am not sure that this is what was actually suggested. The slashing of the civil justice budget and legal aid came later, from the government which succeeded the one in which gave Lord Woolf his mandate. Indeed, the new Labour administration appeared at the outset to suggest a real commitment to civil justice – not just to reform but to investment – and, as I said in my earlier article on the subject, it took a while for us to appreciate that a New Labour promise was worthless. If Dame Hazel does indeed imply a conspiracy between government and judiciary to make civil justice self-financing, then she is probably on her own. If Lord Woolf managed to create the impression that this was her main point (as the Times article implies) then it goes to show that all those years at the bar served him well.

The reality is that Dame Hazel has a strong set of arguments without going that far. I have to say that I am chary of attributing to Lord Woolf personally all of the perceived defects in the CPR. I say this because the Woolf Reports which were the foundation of the CPR evince a strong commitment to encouraging the use of technology by parties. None of that made it into the rules. I doubt that this reflected a change of heart on Lord Woolf’s own part and I am correspondingly unwilling to blame him for everything else which is seen as defective in the CPR.

There are, I know, some who believe that the CPR should be levelled to the ground and a new structure built in its place. From a pragmatic point of view, this is not going to happen, and I am far from clear that its strongest critics have any clear idea as to what would replace those 5,827 pages. If Lord Woolf and those who came after him had devoted as much attention to making case management run on rails as they did to pushing unwilling parties into the sidings of settlement and to erecting deliberate blocks on the line between issue and trial, the picture would be different now. For one thing, we would have enough judges trained and available to manage cases and costs and, specifically, electronic disclosure which has become so expensive a part of the process.

To the extent that any proposed changes require the authority of statute, they are not going to happen in an election year. It is more useful and more practical to consider what might be done by relatively minor changes and by enforcing more stringent compliance with rules which actually matter to the clients whose justice is at stake here. For those of us interested in disclosure, there is much which can be achieved by proper management (as Lord Woolf envisaged) of his 1999 disclosure rules as amended by the 2005 Practice Direction to Part 31.

In any event, the subject of litigation costs is now in the hands of Lord Justice Jackson. The consultation period on his preliminary report closes tomorrow and his final report is due in November. From what we have seen so far, we can expect a radical approach in at least some areas, tempered by realistic assessments of what is actually achievable.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere